Atlanta Consol. St. Ry. Co. v. Jackson

• Decision Date: 02 August 1899
• Citation: 34 S.E. 184,108 Ga. 634
• Parties: ATLANTA CONSOL. ST. RY. CO. v. JACKSON et al.
• Court: Georgia Supreme Court

34 S.E. 184

108 Ga. 634

ATLANTA CONSOL. ST. RY. CO. v. JACKSON et al.

Supreme Court of Georgia

August 2, 1899

Syllabus by the Court.

1. A deed conveying to a street-railroad company the title to the right of way over the land of the grantor contained a recital that the grantee was to run its cars over the right of way a specified number of times during the day, perpetually, and the habendum clause was as follows: "To hold and to have so long as the party of the second part *** uses the said right of way *** for all legitimate railroad purposes as herein set forth, and no other." The successor to this company abandoned the right of way, and an action was brought against it for a breach of the alleged covenant. Held, that the above does not constitute a covenant but is a conditional limitation, and that the land reverted to the grantor go instanti when the company abandoned the right of way.

2. To constitute a covenant running with the land, the covenant "must have relation to the interest or estate granted and the act to be done must concern the interest or estate created or conveyed." Hence, when such an habendum clause further provides that "in case the party of the second part or their assigns default in complying with the covenants herein set forth, in whole or in part, all the rights and perquisites thereof shall revert to the party of the first part and his assigns, together with lawful damages as shall be awarded by due process or otherwise," held, that the stipulation for damages is not such a covenant running with the land, under the above definition as would render the successor to the grantee, who purchased at judicial sale, liable for a breach of covenant, although it abandoned the land after its purchase.

Error from city court of Atlanta; H. M. Reid, Judge.

Action by Lena R. Jackson and others against the Atlanta Consolidated Street-Railway Company. Judgment for plaintiffs. Defendant brings error. Reversed.

Goodwin, Westmoreland & Hallman, for plaintiff in error.

W. E. Ormond and Daley & Hall, for defendants in error.

SIMMONS C.J.

It appears from the record that Rawlins made and executed a deed, signed and sealed by him and by the Metropolitan Street-Railroad Company, wherein he conveyed to that company a right of way over certain lands belonging to him in Fulton county. The deed contained the clauses set out in the headnotes preceding this opinion, and these clauses are there given with sufficient fullness for the purposes of this decision. The railroad company appears to have been in possession of the right of way when the deed was executed. After running its cars over this right of way for several years, it became insolvent, and its assets were placed in the hands of a receiver, and finally sold under a decree of the court, and purchased at the sale by the Atlanta Consolidated Street-Railway Company. The latter company went into possession and ran its cars over this right of way for some time after the purchase, but subsequently abandoned it and removed its tracks. Rawlins having died before this removal, his heirs at law brought an action of covenant against the Atlanta Consolidated, claiming damages for a breach of the covenant brought about by the abandonment of the right of way, and the failure to run cars according to the stipulation in the deed. The petition was demurred to by the defendant company, the demurrer was overruled, and the defendant excepted.

1. It was argued here by counsel for the plaintiff in error that the petition of the plaintiffs in the court below set out no cause of action, for the reason that the stipulations in the deed were not covenants, but conditions subsequent, and that therefore the only right the plaintiffs had was that of re-entry, and that, having this right, they could not recover damages. Counsel for the defendants in error contended that the recitals and stipulations above alluded to were not conditions subsequent, but covenants, and that therefore the plaintiffs had a right to bring an action for the breach of the covenants. We do not agree with either counsel in their contentions. We think that the clauses in the deed were neither covenants nor conditions subsequent, but were conditional limitations or limitations upon condition. While the grantee agreed that it would run its cars over the right of way a specified number of times during each day, still in the habendum clause the grantor stipulated that the grantee should hold the land only "so long as" it used the right of way for all legitimate railroad purposes. In the construction of such clauses by the courts, the usual rule seems to be that when the words used are "so long as," "until," "during," etc., they constitute a limitation upon the estate granted. The fee granted by such a conveyance is a defeasible one. If the grantee had continued to use this right of way according to the terms of the deed, the fee would have remained in it. Had its successor, the purchaser at the judicial sale, continued to use the right of way as stipulated in the deed, the fee would have remained in it. The moment it tore up its track and removed it to another locality, abandoning this right of way, the estate granted its predecessor was lost, and the land reverted immediately to the grantor or to his...